I'm a Fellow at the Adam Smith Institute in London, a writer here and there on this and that and strangely, one of the global experts on the metal scandium, one of the rare earths. An odd thing to be but someone does have to be such and in this flavour of our universe I am. I have written for The Times, Daily Telegraph, Express, Independent, City AM, Wall Street Journal, Philadelphia Inquirer and online for the ASI, IEA, Social Affairs Unit, Spectator, The Guardian, The Register and Techcentralstation. I've also ghosted pieces for several UK politicians in many of the UK papers, including the Daily Sport.

Apple Asks Court To Declare That Samsung Does Not Have Clean Hands

This is something of an interesting gambit in the near interminable series of court cases between AppleApple and Samsung (and this part of it involves NokiaNokia as well). As a result of some dodgy dealing by Samsung and or its lawyers Apple is seeking a declaration that Samsung does not have “clean hands”. This might sound like a very odd thing to insist about a corporation but it does have significant meaning. For a litigant that is declared to have unclean hands cannot then appeal to a court of equity for relief in the matter under discussion.

OK, it still all sounds a bit arcane but here’s the layman’s guide. Back when the world was young and the English were top dog there were two court systems. Legal, or law courts, running on both the Common Law and statute law, and then there were courts of equity. Essentially, a place where you could turn up and say “it’s unfair!” and try to seek a solution. Yes, I know, lawyers will be spluttering over this description but this is a very layman’s guide. Now, the courts of equity no longer exist (at least in England they don’t) but the concept of certain things being about equity rather than the straight and narrow law still exists. But the defining feature of the equity thing was that if you yourself had done something wrong then you couldn’t appeal on those equity grounds. You must have clean hands yourself to be able to avail yourself of this system.

This part of the Apple Samsung legal battle is over Samsung’s lawyers being offered details of the Apple/Nokia licence agreements as part of the court discovery process in this case. They should have had that information: what should not have happened was that Samsung executives then get ahold of it. But they did and Samsung’s defence is that it was all a big mistake with little harm done, Nokia and Apple are insisting that it’s an outrage and something must be done. And Apple at least is insisting that Samsung must be declared to have dirty hands. The implication of that is a bit of a stretch but it might happen:

Apple’s most ambitious initiative is its request of a finding that Samsung is no longer entitled to an injunction in the second California litigation between these parties, which is scheduled to go to trial on March 31, 2014 — or at least it wants the court to hold that Samsung’s misconduct weighs against injunctive relief. Injunctions are an equitable remedy, and Apple cites the principle that “[one] who seeks equity must do equity” and says “the Federal Circuit has held that parties cannot seek equitable remedies where they have unclean hands”. If the court does consider Samsung’s misconduct in the context of injunctive relief, Apple will have a much stronger argument with respect to standard-essential patents (SEPs) than non-SEPs because the improper disclosures were used in a SEP licensing context.

If Samsung is declared to have dirty hands, and if that is deemed to be transferable across cases, then a major part of Samsung’s legal strategy falls apart. Quite whether that will happen is unknown as yet but the judge is taking Samsung’s “error” seriously. It’ll be an interesting case to watch.

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